Originalism Notes for February 27 – March 3

Main points

Scalia believes that judges should interpret statutes according to their original meaning. A statute’s original meaning is what the people to whom it was originally addressed would have understood it to be. Scalia’s originalism is thus different from other varieties of originalism, such as those that look to the intentions of a statute’s authors to determine what the statute means.

Scalia argues that this method of interpretation should also be used for fundamental laws, such as the US Constitution. He contends that doing so would rule out many of the decisions based on the idea that the Constitution is a “living” document. His clearest example concerns the Eighth Amendment’s prohibition on cruel and unusual punishments. Since the Amendment was not originally understood to rule out capital punishment, it cannot legitimately be interpreted to rule out this kind of punishment now.

Dworkin maintains that the original meaning of the Constitution was abstract and not meant to be limited to their own expectations.** Dworkin speaks of original intent, but I think his criticisms can be reworded to apply to Scalia’s position. Instead, the authors of the Constitution meant for each generation to strive to find the truth about, for instance, what punishments are genuinely cruel. If that is what the Constitution originally meant, Scalia’s premises about how to interpret the Constitution do not lead to his conclusions about such matters as capital punishment.

What about judicial decisions?

Both Scalia and Dworkin think that judges should take past court decisions into account in determining what the law is. Neither does much to explain how this fits together with his version of originalism.

Some originalists give little weight to past court decisions. They think that the original meaning of the Constitution should be preferred over court decisions that rely on finding some other meaning. Why give any weight to mistakes, they ask. This sort of position is widely attributed to Justice Thomas. Scalia distances himself from this position by declaring that he is an originalist but “not a nut.”

Unfortunately, our reading does not explain why he holds this position. But you can imagine a rationale. Even if a decision like Brown vs. Board of Education conflicts with the original meaning of the Constitution and its amendments, overturning it would upset the settled understanding of the law. It’s hard to believe that the gains from remaining true to the original meaning of the Constitution would be worth the cost.

That said, I think that Scalia is in an odd position. He appears to be committed to saying that a large number of cases were incorrectly decided. So what if a case like Brown came up now? If we would not have liked the decisions that originalists would have made in the past, why think we would like the ones that they will make in the present or future?

Dworkin thinks that judges should strive to meet an ideal of integrity. That means that their decisions should make the best sense of the history of court decisions leading up to the case they have to decide. I suppose he has to show that this way of being a judge follows from the original meaning of the Constitution but I’m unsure how he would do so. We would have to read one of Dworkin’s constructive works to learn the answer.

Dworkin vs. Scalia (and Bork)

Dworkin tries to present Scalia with a dilemma. He can be an expectation originalist or a semantic originalist. The difference between the two is best illustrated by the “hire the best person for the job” example.

This is a dilemma because it presents Scalia with the choice between an objectionable theory and his favored understanding of the Constitution’s meaning; Dworkin claims that he can’t have both. Expectation originalism fits Scalia’s arguments about the Eighth Amendment, but is objectionable. Semantic originalism is so benign that Dworkin himself claims to subscribe to it. But, Dworkin argues, semantic originalism doesn’t support Scalia’s conclusions about what the Constitution says.

Scalia opts for semantic originalism. He says that the Constitution sets out abstract principles that the courts have to interpret and apply in novel circumstances. These principles were not meant to be limited to what the people at the time knew. For example, he thinks that the Eighth Amendment rules out torture using electrical equipment like cattle prods, bright lights, and recorded music, even though these things were unknown in the eighteenth century.

Robert Bork said something similar about the Fourteenth Amendment’s equal protection clause. He said that the authors of the Amendment intended for it to be abstract rather than concrete. They could not decide exactly what it meant so they left it open for future interpreters.

Which principles?

Since everyone claims to be a semantic originalist, the debate comes down to how to understand the abstract principles that are in the Constitution. Or, as I put it in class, “which principles?”

I wasn’t crazy about the way I listed the alternatives in class. I thought they reflected Scalia’s way of framing the debate too much. So I’m going to try to revise what I said here.

Dworkin thinks the original meaning of the Constitution’s prohibition on cruel and unusual punishment is that the state is forbidden to use whatever punishments are truly cruel. The challenge they left for future generations was to figure out what cruelty genuinely means. It is an invitation to engage in moral philosophy in order to discover the truth about the values mentioned in the Constitution in order to apply them to novel cases.

Scalia thinks the original meaning of the Constitution’s prohibition on cruel and unusual punishment is that the state is forbidden to use whatever punishments people at the time would have recognized as cruel. The challenge for future generations was to figure out what people in the late eighteenth century would have regarded as cruel. It is an invitation to engage in historical investigation to discover what those people’s values were like in order to apply them to novel cases.

What about the equal protection clause? That would be tricky to work out. For instance, Scalia thinks that we have to consult the original meaning in order to discover what kinds of treatment were considered unequal. Different bathrooms for men and women? And so on. But that appears to lead to the undesirable conclusion about segregated schools that Bork, at least, tried to avoid.

Who’s right?

I argued for Scalia’s way of identifying the abstract principles in the Constitution. We don’t think about our values in the way that Dworkin’s position assumes. I don’t think that a future generation may discover that I was wrong about what is cruel. Nor do I think they could discover that racial segregation is alright. Any future interpretation of my use of the term “cruel” would have to be one that I recognize, even if it involves technologies that I am not familiar with.

I assume that the authors of the Constitution thought about their values in pretty much the same way that I think about mine. Of course, this is ultimately a historical question that my argument doesn’t settle. Dworkin, Scalia, Bork, and the rest would have to give historical evidence for their positions too: they all claim to represent the original meaning of the Constitution, after all, and that’s a historical question. It is striking that no one we read provided such evidence.

Scalia on moral regression†† Added March 6

One of Scalia’s arguments is that the point of the Bill of Rights was to commit future generations to some of the founding generation’s views. Future generations may become indifferent to cruelty. For instance, they may seek to revive tortures used in the Spanish Inquisition, foresworn in international agreements, and condemned in war crimes trials carried out by the US. But the Bill of Rights blocks that, even if they have trouble seeing the point in the light of their values.‡‡ Though they could amend the Constitution.

That strikes me as good evidence that they did not take the original meaning of the document to license a search for truth, at least, if that search could go far beyond their own views.

Here’s my conjecture about what’s on Scalia’s mind: abortion. I strongly suspect he thinks it’s wrong. And I know he thinks Roe v. Wade was badly decided. What better example of moral regression could there be than the Supreme Court’s declaring what you regard as murder to be a Constitutional right?

How might Dworkin respond? He can always say that no regressive interpretations could be true and, hence, none could conform to the interpretation of the Constitution that he favors. He might also say that the original meaning of the Constitution and the point of the Bill of Rights is to protect individuals against the state. So even if future generations did lose respect for individual libety and security, the Constitution only allows ratcheting up individual liberty and never allows reducing it. I’m not sure how that would work, but it’s a thought.